3. Conduct
The manner in which a person behaves, specially in a
particular place or situation
4. • Professional misconduct
Also called infamous conduct Lord Justice Lopes LJ defined it in 1894.
“If a medical man in pursuit of his profession has done something which
would be reasonably regarded as disgraceful or dishonorable by his
professional brethren of good repute and competency, then he is
guilty of infamous conduct in professional respect.”
5.
6. PROFESSIONAL NEGLIGENCE /MALPRACTICE
Introduction
Professional negligence is defined as absence of reasonable care and
skill, or wilfulnegligence of medical practitioner, in the treatment of a
patient which causes his bodily injury or death.
Negligence – doing something that one is not supposed to do Or failing
to do something that one is supposed to do.
DUE CARE: It means such reasonable care and attention for the safety of
patient as their mental and physical condition may require.
A physician fails to comply with the standard of care applicable to him in
two situations: (1) when he improperly, i.e., unjustifiably deviates from
accepted practices (methods, procedures, and treatments), and (2) when
he employs accepted practices but does so unskilfully.
Types:
Civil.
Criminal.
Corporate.
Contributory.
7. CIVIL NEGLIGENCENE :
Liability for negligence arises if the following conditions are satisfied
Duty: Existence of a duty of care by the doctor.
Dereliction : The failure on the part of the doctor to maintain applicable standard
of care and skill.
Direct causation: The failure to exercise a duty of care must lead to damage.
Damage : The damage should be of a type that would have been foreseen by a
reasonable physician.
Burden of proof: The patient should prove all four elements of negligence by a
preponderance of the evidence. It requires enough proof to show that it is more
likely than not, that each of the 4 elements of a negligent claim is true.
Personal injuries include any disease or any impairment of a person's physical or
mental conditions.
8. The fact that the unauthorised additional treatment or
surgery is beneficial to the patient, or that it would save
considerable time and expenses to the patient, or would
relieve the patient from pain and suffering in future are
not grounds of defence and amount to an act of assault
and therefore deficiency in service.
The law considers the doctor negligent only when
he did not consider the possibility that such a
complication might occur,
that he failed to watch for it carefully or to recognise it
promptly, or
to treat in a timely and appropriate fashion.
9. The burden of proving negligence lies on the plaintiff (patient). Burden of
proof is the need or duty to establish proof of the facts at trial.
CASE: (1) WHIT AMORE V. RAO: A suit was filed against the doctor for negligent
treatment. The charge was that the doctor injected sulphostab or sulfarsenol,
though the patient was not syphilitic. Evidence was given by the defendant
doctor and other doctors that patient's blood contained parasites of malignant
malaria and he had sores on his face. The Court held that the doctor was not
negligent.
THE DOCTRINE OF RES IPSA LOQUITUR:
Ordinarily, the professional negligence of a physician must be proved in Court by
the expert evidence of another physician. The patient need not prove negligence
in case where the rule of res ipsa loquitur applies, which means "the thing or fact
speaks for itself". The patient has to merely state what according to him was the
act of negligence.
Conditions to be satisfied: (1) that in the absence of negligence the injury would
not have occurred ordinarily; (2) that the doctor had exclusive control over
10. the injury producing instrument or treatment; (3) that the patient was not guilty of
contributory negligence.
Application: This doctrine is applied both to civil and criminal negligence.
CASE: MOHN. V. OSBORNE: An abdominal operation was performed by resident
surgeon and at its conclusion, the surgeon was informed that the swab count was
correct. Two months later, a further operation was done and a swab was found
under the liver. The patient died later. The mother of deceased sued the surgeon for
damages. The Court held the doctor negligent on the ground that the doctrine of
res ipsa loquitur applied to the case.
CONTRIBUTORY NEGLIGENCE:
Contributory negligence is any unreasonable conduct, or absence of ordinary care
on the part of the patient, or his personal attendant, which combined with the
doctor's negligence.
These include
( l) failure to give the doctor accurate medical history. If the patient provides
incomplete or inadequate information. it could result in misdiagnosis,
mistreatment and harm.
failure to cooperate with his doctor in carrying out all reasonable and proper
instructions,
refusal to take the suggested treatment,
11. leaving the hospital against the doctor's advice,
failure to seek further medical assistance if symptoms persist.
LIMITATIONS TO CONTRIBUTORY NEGLIGENCE :
(a)LAST CLEAR CHANCE DOCTRINE : Under
this rule, a person who has negligently placed himself in a position of danger may
recover damages, if the doctor discovered the danger while there was stiJI time to
avoid the injury or failed to do so.
(b) THE AVOIDABLE CONSEQUENCES RULE: This is applicable where the
negligence of the injured person occurs after that of the doctor being sued and
increases the severity of injury. In such cases, the patient is not guilty of
contributory negligence, since his actions were not a cause of the injury.
CASE: A surgeon was sued for not removing a swab from the vagina of patient.
The patient complained about pain in the vagina to a nurse some time after the
operation. The nurse examined the vagina and removed the swab. The patient did
not inform the surgeon about the swab in the vagina. The court held that the
doctor was guilty of contributory negligence.
12. CRIMINAL NEGLIGENCE:
Conditions to be satisfied-
• Indifference to an obvious risk of injury to health,
actual foresight of the risk, but continuation of the same treatment,
appreciation of the risk and intention to avoid it, but showing high degree of
negligence in the attempted avoidance,
• inattention or failure to avoid, a serious risk which went beyond mere
Inadvertance in respect of an obvious important matter.
Occurrence: It involves an extreme departure from the ordinary standard of
care. Criminal negligence cases are very rare, and are practically limited to
cases in which the patient has died.
S. 304, A., I.P.C. deals with criminal negligence. "Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable
homicide shall be punished with imprisonment up to 2 years, or with fine, or
with both". According to S.375, Cr.P.C., in addition to imprisonment or other
penalty prescribed by the I.P.C., compensation may also have to be paid to the
victim of criminal negligence.
13. Case–A doctor while he was drunk, operated upon a woman for eclampsia.
Two days later, the woman died due to the injuries produced during operation.
The doctor was sentenced to one year imprisonment for want of reasonable
care and skill due to intoxication.
.
CORPORATE NEGLIGENCE –This theory is based on the principle that
hospitals are in a far better position than their ptients to supervise a
physician's performance and provide quality control.
In the corporate sector (hospital, nursing home, etc.)., where more than one
person in more than one level fails to render appropriate service to the patient,
may result in some damage to patient. Here the treating doctor and also other
category of persons who were negligent will be held responsible.
ETHICAL NEGLIGENCE :Ethical negligence is the violation of the Code of
Medical Ethics.
14. SUPREME COURT OF INDIA GUIDELINES ON MEDICAL NEGLIGENCE -The
Court collated a 11-point guidelines for the courts to adjudicate complaints against
doctors. They are : (1) Negligence is a breach of duty or an act which a prudent and
reasonable man will not do. (2) Negligence to be established by the prosecution
must be culpable or gross and not merely based upon an error of judgment. (3)
Medical professional is expected to bring a reasonable degree of skill and
knowledge along with a reasonable degree of care but neither the highest nor the
lowest degree of care and competence. (4) A doctor would be liable only where his
conduct fell below the standard of a reasonably competent practitioner. (5)
Difference of opinion cannot be cited as negligence. (6) Just because a professional
looking at the gravity of illness had taken a higher element of risk to redeem the
patient out of his suffering which did not yield the desired result, it may not
amount to negligence. (7) Merely because a doctor chooses one course of action in
preference to the other one available, he would not be liable if the action choosen
by him was acceptable to the medical profession.
15. References:
• Clinical ethics and law ,Lisa v brock JD M.A
• Medical Negligence and the law K K S R
Murthy Indian journal of medical ethics
• Consumer protect act and medical
profession Indian penal code and medical .
• 1] 2010
• [2] 1995 ACJ 1048
• [3] 1969 AIR 128
• [4] 1998
• [5] 1975 36 STC 439 AP
• [6] 1995 SCC (6) 651
[7] 2000
[8] 1996 SCC (2) 634
[9] 1996
[10] 2018
[11] 2011
